Thousands of Federal Trials Kept Secret
By MICHAEL J. SNIFFEN and JOHN SOLOMON
Associated Press Writers
-- -- Despite the Sixth Amendment's guarantee of
public trials, nearly all records are being kept secret for more
than 5,000 defendants who completed their journey through the
federal courts over the last three years. Instances of such secrecy
more than doubled from 2003 to 2005.
An Associated Press investigation found, and court observers agree,
that most of these defendants are cooperating government witnesses,
but the secrecy surrounding their records prevents the public from
knowing details of their plea bargains with the government.
Most of these defendants are involved in drug gangs, though lately a
very small number come from terrorism cases. Some of these
cooperating witnesses are among the most unsavory characters in
America's courts — multiple murderers and drug dealers — but the
public cannot learn whether their testimony against confederates won
them drastically reduced prison sentences or even freedom.
In the nation's capital, which has had a serious problem with drug
gangs murdering government witnesses, the secrecy has reached
another level — the use of secret dockets. For hundreds of such
defendants over the past few years in this city, should someone
acquire the actual case number for them and enter it in the U.S.
District Court's computerized record system, the computer will
falsely reply, "no such case" — rather than acknowledging that it is
a sealed case.
At the request of the AP, the Administrative Office of U.S. Courts
conducted its first tally of secrecy in federal criminal cases. The
nationwide data it provided the AP showed 5,116 defendants whose
cases were completed in 2003, 2004 and 2005, but the bulk of their
records remain secret.
"The constitutional presumption is for openness in the courts, but
we have to ask whether we are really honoring that," said Laurie
Levenson, a former federal prosecutor and now law professor at
Loyola Law School in Los Angeles. "What are the reasons for so many
cases remaining under seal?"
"What makes the American criminal justice system different from so
many others in the world is our willingness to cast some sunshine on
the process, but if you can't see it, you can't really criticize
it," Levenson said.
The courts' administrative office and the Justice Department
declined to comment on the numbers.
The data show a sharp increase in secret case files over time as the
Bush administration's well-documented reliance on secrecy in the
executive branch has crept into the federal courts through the war
on drugs, anti-terrorism efforts and other criminal matters.
"This follows the pattern of this administration," said John Wesley
Hall, an Arkansas defense attorney and second vice president of the
National Association of Criminal Defense Lawyers. "I am astonished
and shocked that this many criminal proceedings in federal court
escape public scrutiny or become buried."
The percentage of defendants who have reached verdicts and been
sentenced but still have most of their records sealed has more than
doubled in the last three years, the court office's tally shows.
Of nearly 85,000 defendants whose cases were closed in 2003, the
records of 952 or 1.1 percent remain mostly sealed. Of more than
82,000 defendants with cases closed in 2004, records for 1,774 or
2.2 percent remain mostly secret. And of more than 87,000 defendants
closed out in 2005, court records for 2,390 or 2.7 percent remain
mostly closed to the public.
The court office also found a sharp increase in defendants whose
case records were partly sealed for a limited time. Among newly
charged defendants, the numbers in this category grew from 9,999 or
10.9 percent of all defendants charged in 2003 to 11,508 or 12.6
percent of those charged in 2005.
But the AP investigation found, and court observers agree, that the
overwhelming number of these cases sealed for a limited time involve
a use of secrecy that draws no criticism: the sealing of an
indictment only until the defendant is arrested.
AP's investigation found a large concentration of both kinds of
secrecy at the U.S. District Court here: limited sealing of records
and extensive sealing that continues even after the courts are done
with a defendant.
"When the sentences are sealed, that's a con on the community," said
Lexi Christ, a Washington defense lawyer for a man acquitted in a
crack cocaine case.
In that case, all the defendants' names became public when the
indictment was unsealed. But all other records for six defendants
who pleaded guilty remained sealed more than two years after the
public trial in which two of the drug dealers were convicted.
One of the cooperating witnesses admitted to seven murders and
testified in open court against co-defendants who had committed
fewer, Christ said. But like the others who pleaded guilty and
cooperated, that witness' plea deal and sentence were sealed.
"Cooperating witnesses are pleading guilty to six or seven murders,
and the jury doesn't know they'll be sitting on the Metro (subway)
next to them a year later. It's a really, really ugly system,"
Prosecutors argue that plea agreements must be sealed to protect
witnesses and their families from violent retaliation. But Christ
said that makes no sense after the trial when the defendants know
The Reporters Committee for Freedom of the Press found the U.S.
District Court here has 469 criminal cases, from 2001-2005, that are
listed by this court's electronic docket as "no such case." An AP
survey over a shorter period found similar numbers here and got oral
acknowledgment from the clerk's office that the missing electronic
docket numbers corresponded to sealed cases. However, these figures
include an unknown number of sealed indictments that will be made
public if arrests are made.
"That's horrifying," said Loyola's Levenson. "When I was a
prosecutor from 1981 to 1989, I never heard of secret dockets."
No matter how few turn out to be almost totally sealed after the
defendant's case was completed, "it's still significant," said Lucy
Dalglish, executive director of the Reporters Committee and a
pioneer in campaigning against court secrecy.
"The Supreme Court has said that criminal proceedings are public,"
Dalglish added. "In this country, we don't prosecute and lock up
convicts and have no public track record of how we got there. That
violates the defendants' rights not to mention the public's right to
know what it's court system is doing."
Although Justice Department does not keep comprehensive nationwide
statistics on secrecy in federal prosecutions, it does track how
often prosecutors ask permission from headquarters to hold a secret
court proceeding, like an arraignment, hearing, trial or sentencing.
The department estimates it got 100 such requests from October 2000
though October 2004, Justice Department spokesman Bryan Sierra said.
Another 100 arrived during the 12 months that ended October 2005, he
Sierra said the large recent increase occurred because the
department sent a memo to all federal prosecutors in 2004 reminding
them they need Washington's approval before requesting or agreeing
to secret courtroom proceedings. Filing of secret papers in cases
doesn't require such permission.
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